The Busy Season

Congress returns from recess this month to confront fundamental questions presented by the president's five-year long global "war on terrorism." On the table is nothing less than the future scope of presidential power, with battles looming over military trials, detainee treatment, and domestic surveillance. In the past several months, courts have dealt the administration a series of setbacks on these issues. Undeterred, the president intends to reverse those defeats by asking lawmakers for even greater authority. The ball is now in their court.

Military trials top the legislative agenda. The impetus is the Supreme Court's recent decision in Hamdan v. Rumsfeld striking down the president's military commissions at Guantanamo Bay. Hamdan did not rule out military trials for suspected terrorists but found that the current commissions exceeded the limits imposed by Congress and by the 1949 Geneva Conventions. Rather than conforming trials to U.S. court-martial procedures, as the Court said the law requires, the administration now wants to change the law. The administration's draft military commission bill, leaked to The New York Times in July, suggests the position it will stake out in the upcoming legislative session. The bill allows secret evidence and denies defendants the right to be present at trial. In also makes conspiracy a war crime, a change that would contradict the opinion of at least four Supreme Court Justices as well as a half-century of international jurisprudence.

Hamdan's impact, however, goes beyond military commissions. The president had previously insisted that the Geneva Conventions did not protect alleged al-Qaeda and Taliban members because they were "unlawful combatants." The administration said it would treat the detainees humanely, but only to the extent consistent with military necessity. Without any legal protections, the "gloves came off," as a former CIA official put it, leading to rampant detainee abuse at Guantanamo, in secret jails overseas, and in Iraq, where military officials "Gitmoized" detention operations at Abu Ghraib and elsewhere. In Hamdan, the Court rejected this effort to build prisons beyond the law when it determined that, at a minimum, Common Article 3 of the Geneva Conventions applies to all detainees in U.S. custody. Common Article 3 does not just require fair trials; it also prohibits mistreatment and abuse of detainees, which, as military officials have argued since the outset, safeguards U.S. servicemen and women as well.

Not even this administration will dare openly propose revoking the Geneva Conventions. The danger lies in more subtle attempts to undermine them. The administration's bill, for example, would make the Geneva Conventions unenforceable in court, permitting violations in practice if not in name. The bill also rewrites the War Crimes Act, the 1996 law criminalizing violations of Common Article 3 and other grave breaches of the Conventions, by narrowing the Act to conduct prohibited under the federal anti-torture statute. In light of the administration's crimped interpretation of that statute, the effect would be to green light the CIA's continued use of such "enhanced interrogation techniques" as threats of violence to detainees and their families, prolonged sleep deprivation, hypothermia, and possibly even water-boarding.

Hamdan may also prompt renewed efforts to strip the courts of habeas corpus jurisdiction over detentions at Guantanamo, where approximately 450 prisoners are still imprisoned without charge. Hamdan rejected the administration's argument that a law enacted last year, the Detainee Treatment Act, eliminated habeas for prisoners at Guantanamo. The administration, along with some lawmakers, including South Carolina Senator Lindsey Graham, may now try to override these rulings by making a habeas repeal explicit. If they succeed, Guantanamo will revert to a legal black hole and the stage will be set for yet another major Supreme Court showdown.

Congress is also expected to turn to the issue of domestic surveillance. The administration's game plan here is similar: Dodge court rulings rebuffing its claims of unchecked executive power by seeking even greater authority from Congress.

The current controversy first erupted in December, when The New York Times reported the existence of a warrantless electronic surveillance program run by the National Security Agency that eavesdrops without court approval on Americans' international telephone and Internet communications. A subsequent story in USA Today provided additional details on NSA spying, describing the use of data-mining techniques to analyze the phone call records of tens of millions of Americans. These revelations, moreover, may only be the tip of the iceberg.

The administration responded to lawsuits challenging the NSA's warrantless surveillance by invoking the "state-secrets" privilege, claiming that the suits would compromise national security if allowed to go forward. In July, a federal judge in California rejected this argument, observing that district courts routinely handle classified information without putting the country at risk. And, just last month, a federal judge in Detroit ruled that the NSA domestic spying program violated the Foreign Intelligence Surveillance Act of 1978, which regulates intelligence agency surveillance, as well as the Fourth Amendment's prohibition against illegal searches and seizures.

Senator Specter, however, has already introduced a bill that would gut existing checks on domestic spying. The bill short-circuits current legal challenges to the NSA program by providing for their transfer to the specialized FISA court, which was established for the very different purpose of reviewing individual warrant applications. The proposed legislation would then give the FISA court authority to dismiss the suits for any reason at all. It also permits the FISA court to approve entire surveillance programs, substituting one-time wholesale review for the individualized consideration the court now gives to each warrant application. In addition, the proposed legislation states that the president has "inherent authority" to conduct surveillance, an escape clause permitting the president to commit perpetual end-runs around FISA's strictures.

Another possible area of legislative action is presidential signing statements, remarks that accompany the president's signing of a bill into law. No past president has issued such statements nearly as often, or with the same intent to nullify restrictions on his power, as George W. Bush has. When, for example, Congress passed the Detainee Treatment Act prohibiting cruel, inhuman, and degrading treatment of all prisoners in U.S. custody, the president still reserved the right to independently interpret and apply that law -- in other words, to waive the anti-torture ban whenever he deemed necessary. In July, a blue-ribbon task force of the American Bar Association issued a report criticizing the president's use of signing statements for undermining the proper relationship between the branches of government.

Indeed, though Bush has put himself above the law by creating military show-trials, mistreating detainees, and spying on Americans, it is his abuse of signing statements that has so far roused a slumbering Congress to fight back. Senator Specter has already introduced a bill that would give members of Congress the right to sue in court to challenge the president's issuance of signing statements. Lawmakers may be moved less by principle in this case than merely their sense that the president has transgressed institutional prerogatives. It's a bit dispiriting to see Congress stand up to the president only to protect its own turf rather than the rule of law. But after five years in which it has failed to do even that much, it's at least a start.

Jonathan Hafetz is an attorney at the Liberty and National Security Project of the Brennan Center for Justice. He is writing a book about role of judicial review in post 9-11 detentions, to be published by NYU Press.

About the Author

Jonathan Hafetz directs litigation for the Liberty & National Security Project of the Brennan Center for Justice at NYU School of Law, and is the author of a forthcoming book on post-September 11 detention policy, to be published by NYU Press.